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TMI Blog2024 (12) TMI 801X X X X Extracts X X X X X X X X Extracts X X X X ..... be cast on it. The exporter preferred appeal. Revenue supported the final assessment order. We have been shown that the first appellate authority found from the final assessment order, material relied upon to levy the demand of export duty was, inter alia, the private test report. It appears, both the assessing authority as well as the first appellate authority proceeded on DMT basis to levy and sustain demand of export duty. There have been submissions made, based on information appearing from the report dated 7th July, 2017 that on drawing of samples as on 31st March, 2017, there is indication the test was conducted in July. If that is not so, there is no indication from the report as to when the test was conducted. All this inclines to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for determining whether export duty is payable? 2. There were provisional and ultimately final assessment order dated 27th November, 2018. The assessment order says, goods under shipping bill dated 11th March, 2017 were provisionally assessed, pending submission/receipt of, inter alia, certificate of weight, quality of Inspectorate Griffith India Pvt. Ltd. and test memo report from Chemical Laboratory, Kolkata. The final assessment resulted in demand for export duty. Respondent unsuccessfully preferred appeal before the first appellate authority. It then carried its grievance to the Tribunal. In impugned order finding was, the goods entered for export attracted export duty payable as nil. 3. Mr. Satapathy, learned advocate, Senior Standing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pon submission of the desired final documents, pending submission of which the provisional assessment order had been made. The private test report along with test memo report from Chemical Laboratory, Kolkata were before the assessing authority, for making the final assessment order. He submits, it appears from the order, information given in the private test report was relied upon. 6. Referring to appellate order dated 31st December, 2020 he points out from paragraph-6 therein, the first appellate authority perused the final assessment order. The authority found, goods in respect of the shipping bill were duly assessed finally based on load port certificate of quality dated 25th March, 2017 issued by Inspectorate Griffith India Pvt. Ltd. a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in (2014) 15 SCC 144 , inter alia, paragraphs 22 and 23. 7. Mr. Majumdar submits, for purpose of determination of export duty, the goods being iron ore fines are to be assessed on Fe content taken at Wet Metric Ton (WMT) basis. There is no dispute percentage Fe content on that basis is below 58% and therefore the goods not attracting levy of export duty. He adds, it will appear from the test report relied upon by revenue, the samples were drawn on 31st March, 2017 and there is indication in the test memo disclosed at page-60, testing was on 4th July, 2017. The report itself is doubtful. 8. Moving on for answer to the question, according to him it should be given in the negative and in favour of his client. He relies on view taken by the Bom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the iron content, in exclusion of impurities and moisture. Thus contracts, under which export of iron ore fines are made and in his client s case, the basis was DMT weight of the goods. However, the levy of export duty is on WMT basis, again on which there is no dispute. In the circumstances also, the answer should be in the negative and in favour of his client. 9. We do find that revenue though had the test report as a document submitted for final assessment, accepted the final assessment made on basis of information obtained from the private test report. This crystalizes into a position on facts that there was no dispute regarding the private test report inasmuch as, no doubt can be cast on it. The exporter preferred appeal. Revenue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellate authority and the Tribunal. There is no indication of any controversy regarding application of the circular, as appearing from said orders. 12. We accept respondent s contentions upon reliance on Dwijendra Narain Roy (supra). So far as V.M. Salgaocar and Brother Pvt. Ltd. (supra) is concerned, one of the views taken by the Division Bench of the Bombay High Court says, it is not correct for revenue to contend that the dry method which is being used for the purpose of trade and commerce be made applicable for purpose of determination of its classifications for the purposes of levy of export duty of raw iron ore in its natural form. Disclosed in the appeal is circular dated 17th February, 2012, paragraph-3 in which is reproduced below ..... X X X X Extracts X X X X X X X X Extracts X X X X
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